Provocation defence reforms don’t go far enough

Over the past decade most states in Australia have abolished or dramatically reformed the defence of provocation for murder.

The reforms were aimed squarely at putting an end to men who kill their wives and girlfriends getting away with murder.

New South Wales is now the latest state which plans to reform its defence provocation laws even further, but reform campaigners have warned similar attempts in other states like Victoria have so far produced mixed and quite unintended results.

Legal reforms alone, they say, can’t stop lawyers preying on jurors’ sympathies that women who leave or cheat on their husbands can provoke the men in their life to act beyond reason.

Deborah Cornwall reports.

PHIL CLEARY: My sister was a clear example where she couldn’t escape the man in her life. She left him and yet, three months later, he could murder her and claim that she provoked him. And so often this is what jurors do: they blame the woman.

DEBORAH CORNWALL: It’s 26 years since Phil Cleary’s sister Vicky was stabbed to death, just steps from the Melbourne childcare centre where she worked.

Her killer, a former boyfriend, was later sentenced to just six years’ jail for manslaughter, a verdict which propelled Phil Cleary into politics and a life-long campaign to end to the defence of provocation, a defence he says amounts to state-sanctioned revenge killings.

PHIL CLEARY: We watched as that man cried in the courtroom. We watched as a defence lawyer talked about what this woman had done to him, how she had abandoned him, how she’d become deceitful, how she had not told him the truth, all to do with her trying to break free of him.

DEBORAH CORNWALL: The provocation defence is now recognised as such a dangerous excuse for domestic homicides, every state in Australia except NSW has since reformed the defence or abandoned it completely.

But with NSW now moving towards its own reforms, criminologist Dr Kate Fitz-Gibbon says the experience in other states should serve as a warning: even the best intended legal reforms, she says, haven’t been enough to stop men getting away with murder.

KATE FITZ-GIBBON: When we see it in cases where a women was attempting to leave or whether she cheated on her husband, essentially what it’s saying is that our law thinks adultery is punishable by death. And I don’t think that that is something that anyone in our community would feel comfortable with our legal system saying now.

DEBORAH CORNWALL: In Phil Cleary’s home state of Victoria, the defence of provocation was scrapped altogether in 2004, replaced by a whole new category of offence: defensive homicide.

The laws were drafted in an attempt to stop men abusing the provocation defence, but also provided a lesser charge for women who were driven to killing their partners by domestic violence.

Yet 13 years on, just three of the 28 convictions for defensive homicide have been women who killed abusive men. The other 25 convictions have all been men killing men, most of them random drug-fuelled attacks.